A constitution that puts judge-made law first will be an increasingly unoriginalist constitution as precedent is piled on precedent.
Supreme Court Justice Samuel Alito has been closely associated with an approach to constitutional interpretation commonly referred to as judicial minimalism, in which a justice will decide a case on the narrowest basis possible. As he put it in his majority opinion in NASA v. Nelson (2011), the Court should decide only the narrowest question “before us and leave broader issues for another day.” However, his concurrence in the judgment recently in Bond v. United States (2014) raises an interesting question: Is he beginning to waver from his commitment of judicial minimalism?
In practical terms, judicial minimalism often means accepting mistaken precedent but refusing to expand it. For example, soon after his confirmation, Alito announced the judgment of the court in Hein v. Freedom from Religion Foundation (2007), in which he refused to extend the exception to taxpayers’ suits established in Flast v. Cohen (1968) in order to give standing to those wanting to challenge the constitutionality of the Bush administration’s Office of Faith-Based and Community Initiatives. Whatever misgivings Alito had about Flast, he did not have to overrule this precedent in order to reach what for him was the correct conclusion. The Court’s originalists, Antonin Scalia and Clarence Thomas, would have gone further and overruled Flast as contrary to the Court’s long-established standing jurisprudence. In his concurrence in the judgment, which Thomas joined, Scalia complained, “We had an opportunity today to erase this blot on our jurisprudence but instead have simply smudged it.”
Another example came earlier this term when the Court in McCutcheon v. Federal Election Commission (2014) struck down on First Amendment grounds the biennial aggregate limit on individual contributions to national party and federal candidate committees imposed by the Federal Election Campaign Act. Chief Justice John Roberts, the Court’s other judicial minimalist, announced the judgment of the court, which Alito joined, arguing that “we see no need in this case to revisit Buckley [v. Valeo]’s distinction between contributions and expenditures . . . [b]ecause we find a substantial mismatch between the Government’s stated objective and the means selected to achieve it. . . . ” Thomas, ever the originalist and the justice least committed to precedent, concurred in the judgment. “I adhere to the view that this Court’s decision in Buckley v. Valeo denigrates core First Amendment speech and should be overruled.”
In Bond v. United States, however, Alito broke from Roberts and for the first time joined Scalia and Thomas, both eager to break with precedent when it fails to conform with the text and the original meaning of the Constitution.
The question in the case concerned the reach of the laws passed by the U.S. Congress. The Court was asked to decide whether, under legislation that Congress passed to implement the Chemical Weapons Convention, the federal government could prosecute what Roberts called “an amateur attempt by a jilted wife to injure her husband’s lover [by applying toxic chemicals on her doorknobs, car handles, and mailbox], which ended up causing only a minor thumb burn readily treated by rinsing with water.” Roberts, writing for the Court’s four liberals and Justice Anthony Kennedy, avoided this constitutional question by narrowly interpreting the Chemical Weapons Convention Implementation Act of 1998 (CWCIA) so as not to apply to ordinary poisoning cases traditionally tried in state court.
The words of the CWCIA clearly covered Bond’s actions, but Roberts argued that it was not Congress’s intention to reach ordinary criminal activities. He never invoked Church of the Holy Trinity v. United States (1892), but his argument was entirely consistent with Justice David Brewer’s unanimous opinion for the Court in that famous case: “[A] thing may be within the letter of the statute and yet not within the statute because not within its spirit nor within the intention of its makers.”
In his book, A Matter of Interpretation, Scalia was highly critical of Holy Trinity, calling it “nothing but an invitation to judicial lawmaking.” So, not unsurprisingly, Scalia only concurred in the judgment. He insisted that “it is clear beyond doubt” that the CWCIA “covers what Bond did” and bemoaned that Roberts’ “result-driven antitextualism befogs what is evident.” As a result, he declared, “we are forced to decide—there is no way around it—whether the Act’s application to what Bond did was constitutional. I would hold that it was not.” Alito joined in these words.
Alito also joined in almost all of Thomas’s concurrence in the judgment, including the following: “By its clear terms, the statute at issue in this case regulates local criminal conduct that is subject to the powers reserved to the States. That aggrandizement of federal power cannot be justified as a ‘necessary and proper’ means of implementing a treaty addressing similar subject matter. To the contrary, reading the Necessary and Proper Clause to expand Congress’ power upon the ratification of every new treaty defies an indisputable first principle of our constitutional order: ‘[T]he Constitution created a Federal Government of limited powers.’” Alito even joined Thomas’s originalist insistence that “in an appropriate case I believe the Court should address the scope of the Treaty Power as it was originally understood.”
These are hardly the sentiments of a judicial minimalist. But Alito did more than join in Scalia’s and Thomas’s words:
He wrote his own concurrence in the judgment in which he rejected Roberts’ attempt to ignore the CWCIA’s actual text in favor of what he, Roberts, believed Congress would have intended had it contemplated the particulars of this case. Secondly, Alito found it “necessary to reach the question whether this statute represents a constitutional exercise of federal power.” Thirdly, Alito concluded that “insofar as the Convention may be read to obligate the United States to enact domestic legislation criminalizing conduct of the sort at issue in this case, which typically is the sort of conduct regulated by the States, the Convention exceeds the scope of the treaty power. . . . For these reasons, I would reverse petitioner’s conviction on constitutional grounds.”
This is quite extraordinary, for Justice Alito has never made an originalist argument in any of his opinions, but he agrees with Thomas that Court “should address the scope of the Treaty Power as it was originally understood.” And, he joins with Scalia and Thomas in seeking to protect federalism as the Founders originally designed it.
Judicial minimalism is thin gruel. While it would be a mistake to read too much into Alito’s concurrence and those he joined in Bond, it may well be that he is finally developing an appetite for an approach to constitutional interpretation that is more hearty for him—and more healthy for the Republic.